Version 1 – September 2021 Liberty Protection Safeguards: Client-wide support Responsible Body Preparedness – Sharing Ideas Over the last couple of months we have spoken to MCA/DoLS leads at 33 NHS organisations and Local Authorities and joined a number of implementation groups. Unsurprisingly, the COVID-19 pandemic has significantly impacted the amount of resource available to undertake planning for implementation of the Liberty Protection Safeguards. However, the initial implementation date remains set as 1 April 2022. Therefore, it is imperative that organisations start to take the practical steps necessary for implementation. We have identified 17 key areas of work and have utilised these as headings in the various papers we have produced to date to enable read-across. Scoping Project Implementation networks Electronic system Administration Approval of AMCPs Governance IMCAs Process/procedure Mental disorder assessment Mental capacity assessment Necessary and proportionate Staffing Training Communications Transition Audit and monitoring Future papers will try to maintain these headings as far as possible, but we will amend them if necessary as further information comes to light. Because we are still awaiting the draft Code of Practice and Regulations, for some of these key areas there are not a lot of ideas and suggestions to share, as discussions are not yet occurring in earnest. In a number of key areas, detailed work also can’t get started at an organisational level until it is decided whether aspects of the LPS process will be managed collaboratively between Responsible Bodies, in conjunction with other ICS partners (see: LPS - Questions for ICS/ICP). 1. Scoping Defining Criteria for Scoping Each of the different organisation types will have different considerations when trying to make an educated guess at the number of LPS applications they will be making/receiving. We have captured some of the suggestions made to us in the table below. Some overriding considerations when looking at current numbers are: How well do staff understand and apply
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Version 1 – September 2021
Liberty Protection Safeguards: Client-wide support
Responsible Body Preparedness – Sharing Ideas
Over the last couple of months we have spoken to MCA/DoLS leads at 33 NHS organisations
and Local Authorities and joined a number of implementation groups. Unsurprisingly, the
COVID-19 pandemic has significantly impacted the amount of resource available to undertake
planning for implementation of the Liberty Protection Safeguards.
However, the initial implementation date remains set as 1 April 2022. Therefore, it is
imperative that organisations start to take the practical steps necessary for implementation.
We have identified 17 key areas of work and have utilised these as headings in the various
papers we have produced to date to enable read-across.
Scoping Project Implementation networks
Electronic system Administration Approval of AMCPs
Governance IMCAs Process/procedure
Mental disorder assessment Mental capacity assessment Necessary and proportionate
Staffing Training Communications
Transition Audit and monitoring
Future papers will try to maintain these headings as far as possible, but we will amend them if
necessary as further information comes to light.
Because we are still awaiting the draft Code of Practice and Regulations, for some of these key
areas there are not a lot of ideas and suggestions to share, as discussions are not yet occurring
in earnest.
In a number of key areas, detailed work also can’t get started at an organisational level until it
is decided whether aspects of the LPS process will be managed collaboratively between
Responsible Bodies, in conjunction with other ICS partners (see: LPS - Questions for ICS/ICP).
1. Scoping
Defining Criteria for Scoping
Each of the different organisation types will have different considerations when trying to make
an educated guess at the number of LPS applications they will be making/receiving. We have
captured some of the suggestions made to us in the table below. Some overriding
considerations when looking at current numbers are: How well do staff understand and apply
the MCA in everyday practice? Are there individuals meeting the ‘acid test’ possibly being
missed?
Organisation type Considerations and suggestions made
NHS Provider – acute
Starting point – current DoLS applications + any COP applications for 16/17 year olds.
How liberally has the Ferreira judgment1 been used? Therefore, are current DoLS application numbers a reliable indicator?
Calculating a ‘worst case scenario’ (where can’t trust current DoLS numbers) based on the admissions to wards of a particular type (eg stroke) or where particular diagnosis codes are used (eg dementia).
Number of admissions of 16/17 year olds each year? Minus the number of these that are MHA admissions. Then pull the diagnosis code of each to make a judgment.
NHS Provider – mental health
Starting point – current DoLS applications + any COP applications for 16/17 year olds.
Calculating a worst case scenario – how many informal admissions each year of individuals 16+?
(NB: The concern amongst MH trusts seems to be the impact if/when the MHA proposed reforms are implemented).
CCG Starting point - Number of DoLS in care homes currently that are CHC funded (obtain numbers from LA) + Number of COP applications for CHC funded individuals in the community.
Some are working on a ball park figure of 1/3 of all CHC (fully funded) cases.
(NB Joint funded packages and s117 funded packages will be referred to the Local Authority for authorisation of LPS (even where the CCG pay >50%). Similarly children’s packages, even where 100% CCG funded would be referred to the Local Authority for authorisation as they are not technically CHC).
Local Authority Number of DoLS from Independent Hospitals currently + Number of DoLS from care homes currently minus those that are CHC funded + A proportion (?%) of
1 The Ferreira judgement [court of appeal, 2017 https://www.bailii.org/ew/cases/EWCA/Civ/2017/31.html, where it was judged that there was not a DoL at all] was applied differently across acute providers with some organisations interpreting this as applying to the majority of acute inpatients (as they are all receiving life-sustaining treatment) with others interpreting this narrowly as applying only in ICUs.
The wording of the new legislation is that any ensuing deprivation of liberty is authorised where the “steps are wholly or partly for the purpose of giving P life-sustaining treatment or doing any vital act” (where a vital act is one which is believed to be necessary to prevent a serious deterioration) and it is an emergency (defined as an urgent need to take the steps and not reasonably practicable to make an application for detention under the MHA or make the application for LPS authorisation to the Court or Responsible Body).
The Code of Practice may make clearer how this should be interpreted, but it is not guaranteed and we may still be reliant on the current case law.
Organisation type Considerations and suggestions made
joint funded packages, s117 packages in other settings and 16/17 year olds receiving any package (even where CCG funded).
Numbers at an organisation level
Following conversations with organisational leads we have requested figures of number of
DoLS, Court of Protection (COP) applications, MHA admissions, 16/17 year olds in service, BIAs
employed etc in order to do some comparative benchmarking. It is interesting that not all
organisations were able to provide these figures easily and some of the figures we have got
back are inconsistent eg calendar years vs financial years.
A number of our requests are still outstanding. We will produce a comparison in a future
iteration of this report.
CCGs have recently been asked by NHSE to complete a spreadsheet which captures similar
data. The return date is 25 September 2021 so this should provide a national picture
specifically for CCGs. We have asked for a copy from CCG clients from whom we were still
awaiting data to prevent duplication.
We understand a similar request may be made from providers in due course.
There have been very few COP applications for 16/17 year olds made by NHS providers.
Among CCGs and Local Authorities, there is almost a split between those that have decided to
actively try to identify deprivations of liberty in the community and apply to the COP for
authorisations (where there may even be a team supporting this) and those who have made a
decision that the risk v resource position is such that they will only progress with applications
to COP where there is a specific high-risk set of circumstances.
Numbers at an ICS level
The graph below shows the numbers of DoLS applications per ICS in 2019/202 (stacked
columns – where each colour is a different Local Authority within the ICS), along with the rate
of DoLS applications per 100,000 of population (superimposed line graph).
2 Figures available from https://digital.nhs.uk/data-and-information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/2019-20 We have combined Local Authorities to create ICS-wide figures.